ORDER
Ram Mohan Reddy, J.
Page 1182
1. The order dated 18.1.2005 of the officer authorised granting 28 guntas of agricultural lands in Sy.No. 123/1 of Thernahalli, by allowing the petitioner’s application in form No. 7, under Section 77A of The Karnataka Land Reforms Act, 1961, for short Act, when called in question in Appeal No. 482 and 483/05, by the land owners before the Karnataka Appellate Tribunal, for short KAT, was set aside by order dated 15.3.2006. Annexure ‘A’. Hence this writ petition.
FACTS IN BRIEF:
2. The petitioner though claimed to be the lawful tenant in possession and cultivation of the land in question under the land owner ever since the year 1970, supported by the entries in the RTC Phanis (Revenue Records), did not file application in form No. 7, under Section 48A(1) of the Act, for Page 1183 being registered as an occupant of the said land within the time prescribed by Statute, on account of a good understanding between himself and the land owner. On the incorporation of Section 77A into the Statute, the petitioner filed application in form No. 7A for grant of land, which when enquired into, including a spot inspection on 18.1.1999 by the revenue authorities, after notice to all interested parties, the officer authorised by order dated 18.1.2005 granted the said land in Sy.No. 123/1 of Therahalli, which when called in question in Appeal No. 482 and 483/05 by the land owners, before the KAT was set aside by the order impugned.
ADMITTED FACTS:
3. The petitioner did file an application in Form No. 7. under Section 48(A)(1) of the Act for being registered as an occupant of lands in Sy.No. 57 and Sy.No. 23/1 being inam lands, without furnishing the particulars of Sy.No. 123/1, as tenanted land on the appointed date, which when enquired into by the Land Tribunal, rejected the application. The petitioner having not questioned the order is final and binding.
CONTENTION ADVANCED:
4. The learned Counsel for the petitioner drew my attention to the words “such land” appearing in Section 77(1)(ii) of the Act to contend that the petitioner having failed to apply for and secure occupancy rights over Sy.No. 123/1 in form No. 7, was entitled to maintain an application in Form No. 7A for grant of the said land.
5. Section 77-A reads thus:
77-A. Grant of land in certain cases.–(1) Notwithstanding anything contained in this Act, if the Deputy Commissioner, or any other officer authorised by the State Government in this behalf is satisfied after holding such enquiry as he deems fit, that a person.–
(i) was, immediately before the first day of March, 1974, in actual possession and cultivation of any land not exceeding one unit, which has vested in the State Government under Section 44; and
(ii) being entitled to be registered as an occupant of such land under Section 45 or 49, has failed to apply for registration of occupancy rights in respect of such land under Sub-section (1) of Section 48-A within the period specified therein; and
(iii) has continued to be in actual possession and cultivation of such land on the date of commencement of the Karnataka Land Reforms (Amendment) Act 1997.
he may grant the land to such person subject to such restrictions and conditions and in the manner, as may be prescribed.
Provided that the land so granted together with the land already held by such person shall not exceed 2 hectares of ‘D’ class of land or its equivalent thereto.
Page 1184
(2) The provisions of Sub-section (2-A) and (2-B) of Section 77 and the provisions of Section 78 shall apply mutatis mutandis in respect of the grant of land made under Sub-section (1).
REPORTED OPINIONS:
1. Giriyappa and Ors. v. State of Karnataka 2000(3) KLJ 70.
2. Hosabayya Nagappa Naik v. State of Karnataka by its Secretary, Revenue Department ILR 2002 Kar 1342.
3. S.C. Chandrappa v. The State of Karnataka, Secretary to Government ILR 2005 Kar 3637.
REASONS:
I. In Giriyappa’s case, Viswanatha Shetty J., having regard to the provisions of Section 44 to 48A and Section 63 of the Act read with Rule 19 of The Karnataka Land Reforms Rules, 1974, for short Rules, held that an applicant in form No. 7, under Section 48A(1) of the Act for being registered as an occupant of land as a tenant, is required to furnish particulars of all the lands under each tenancy in the taluka or one or more taluks, and that only one application is maintainable in view of the power of the Land Tribunal under Sub-section (3) of Section 48A to permit amendment to the application. It is further held that once an application is disposed off by the Tribunal, a second application by the applicant or any person claiming through him, claiming occupancy rights over lands to which a claim was not made in the earlier application, is not maintainable, and that the applicant having omitted to include such land of which he is entitled to be registered as an occupant, is barred from filing another application.
In the backdrop of the provisions of Section 48A, Rule 19, read with the ceiling on holding under Section 63 of the Act, and the time stipulated by the Statute to file application in Form No. 7, as well as the principles underlying Order 2 Rule 2 of the C.P.C. in order to avoid multiplicity of proceedings, I respectfully agree with the reasons and findings in Giriyappa’s case supra.
II. In Hosabayya Naik’s case supra, a Division Bench of this Court, while interpreting the scope of enquiry under Rule 26C in a proceeding under Section 77A of the Act, held that, that enquiry cannot be equated to an enquiry by the Land Tribunal under Section 48(A) of the Act, since the jurisdiction under Section 77A to giant land could be exercised only if the land in question is vested in the State under Section 44 of the Act which should be a “concluded fact”. In other words the officer authorised cannot hold an enquiry into whether the land was lawfully tenanted and cultivated by the applicant as on the appointed date, to record a finding of vesting of the land.
III. In S.C. Chandrappa’s case, another coordinate Division Bench of this Court, observed thus:
The proceedings under Section 77A cannot be equated to a proceeding initiated by the Land Tribunal in pursuance of an application in Form Page 1185 No. 7 made under Section 45 of the Act. It needs to be noticed at the threshold that if an applicant in Form No. 7 establishes that he was in actual possession and personal cultivation of the subject lands as on the appointed date, that is, 01.03.1974, the land Tribunal is duty bound to grant occupancy rights of such lands. But, that is not the situation under Section 77A of the Act. Section 77A of the Act is only an enabling provision to grant a land which is already vested in the State Government to an applicant. No applicant in Form No. 77A can claim a land as a matter of right or as a matter of course. For varieties of reasons, the Assistant Commissioner may not grant land to an applicant. Secondly, a person who has missed the bus due to his indolence cannot be treated on par with a person who is vigilant in working out his legal remedies by making application in Form No. 7 within the stipulated time. Law helps the vigilant, and not the indolent. That seems to be the legislative policy behind Section 77A of the Act. If the legislature wanted to help even those tenants who did not make application in Form No. 7 within the stipulated time to secure grant of occupancy rights, of course, the law maker would have extended the time to make Form No. 7 applications. Therefore there are no good and weighty reasons to differ from the opinion of the co-ordinate bench.
CONCLUSION:
I. Applying the observations in Giriyappa’s case to the admitted facts of this case, the petitioner having omitted to make a claim for occupancy rights over land in Sy.No. 123/1, in form No. 7 filed by him, which was rejected by the Land Tribunal, the petitioner having been barred from filing another application, in my considered opinion cannot fell within the mischief of Section 77A(1)(ii) of the Act. What the petitioner did not secure directly cannot be secured indirectly.
II. The officer authorised appears to have gone beyond the scope of enquiry under Rule 26C of the Rules in order to record a finding that as the land was tenanted prior to the appointed date, the land stood vested in the State, which enquiry and finding is without jurisdiction and perverse. In the absence of material to establish the ‘concluded fact of vesting of the land in the State the KAT was fully justified in setting aside the order of the officer authorised, and rejecting the application in Form No. 7A of the petitioner.
6. The order impugned is not shown to suffer from any infirmity in law or substantiated to be based on no evidence or vitiated on account of any perversity of approach to call for a different conclusion in order to interfere with the verdict
7. The writ petition is without merit and is rejected.
